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The Nuclear Regulatory Commission (NRC) staff has publicly released a copy of SECY-18-0055 (dated May 7, 2018), which seeks Commission approval to publish a proposed rule to amend NRC regulations related to the decommissioning of nuclear power reactors. If approved, the NRC Staff will publish the proposed rule in the Federal Register for a 75-day public comment period. The proposed rule, which is accompanied by a draft regulatory analysis and a draft environmental assessment, represents the latest step in a rulemaking process that the NRC staff commenced in December 2014, when the Commission directed the staff to proceed with an integrated rulemaking on power reactor decommissioning in response to the increasing number of power reactors entering decommissioning. Notably, since 2013, six power reactors have permanently shut down, defueled, and entered decommissioning, and 12 additional reactor units are slated to do the same.

The types of potential accidents at decommissioning reactors are substantially fewer, and the risks of radiological releases are substantially lower, relative to those at operating reactors. Certain NRC decommissioning regulations, however, do not specifically account for this important difference between shutdown and operating plants. This fact has prompted decommissioning licensees to request resource intensive regulatory exemptions and related license amendments. Accordingly, the principal purpose of the proposed rule is to increase regulatory efficiency by aligning decommissioning requirements with the reduction in radiological risk that occurs over time (such that fewer plant-specific exemptions and license amendments are necessary) while still adequately protecting public health and safety and maintaining security. The proposed rule seeks to achieve this end by adopting a “graded approach” in several areas that is commensurate with the reductions in radiological risk that occur as a plant progresses through the decommissioning process (i.e., by removing all spent fuel from the reactor vessel, allowing sufficient decay of the fuel in the spent fuel pool, transferring all fuel to dry storage, and removing all fuel from the site).

The proposed revisions are broad in scope insofar as they would amend language in multiple parts of NRC regulations, including 10 CFR Parts 20, 26, 50, 51, 52, 72, 73, and 140. However, from our perspective, the most important aspects of the proposed rule include changes to the following areas:

Emergency Preparedness (EP): The proposed rule would provide an alternative, graded approach to the current 10 CFR Part 50 requirements for onsite and offsite radiological EP at power reactor sites. This approach would provide four levels of emergency planning standards that coincide with significant milestones in decommissioning and which reflect the gradual reduction of the radiological risk during decommissioning: (1) post-shutdown emergency plan; (2) permanently defueled emergency plan; (3) independent spent fuel storage installation (ISFSI)-only emergency plan; and (4) no emergency plans are required

Physical Security: The proposed rule would change language in 10 CFR Parts 50, 72, and 73 related to physical security requirements that would apply once a power reactor enters decommissioning. The proposed changes for decommissioning power reactors would allow for a graded approach and alternatives for physical security of the facility (e.g., by removing requirements for licensees to have a physical protection program to prevent significant core damage once the licensee has certified that the fuel has been removed from the reactor core; by removing the control room as a “vital area” once the licensee has removed vital equipment; by allowing a step down in the physical security requirements currently imposed on operating reactors by the NRC after all fuel has been moved to dry storage)

Cybersecurity: The proposed rule would provide that the cybersecurity requirements in 10 CFR 73.54 concerning protection of licensees’ critical digital assets (e.g., digital computer and communication systems or networks) continue to apply to a power reactor after the permanent cessation of operations, but only until the fuel in the spent fuel pool has decayed sufficiently. The proposed rule also would provide for the removal of the cybersecurity license condition for 10 CFR Part 50 power reactor licensees after the spent fuel decay period

Decommissioning Funding Assurance: The proposed changes would allow power reactor licensees to use excess funds in their decommissioning trust funds (DTFs) established under 10 CFR 50.75 during decommissioning for spent fuel management and for decommissioning of specific-license ISFSIs if certain conditions are met. Additionally, the proposed rule would remove the requirement for NRC approval of ISFSI decommissioning funding plans (DFPs) filed under 10 CFR 72.30(c), and modify the reporting frequency in 10 CFR 50.75 to be consistent with the decommissioning funding assurance reporting frequency for ISFSIs in 10 CFR 72.30(c)

Offsite Financial Protection and Onsite Property Damage Insurance Requirements: The proposed rulemaking would allow certain licensees with decommissioning nuclear reactors to reduce the insurance amounts that they are required to maintain without obtaining exemptions from the NRC’s regulations in 10 CFR Parts 50/52 and 140. The proposed changes would codify a two-step graded reduction approach that recognizes that reductions in insurance amounts may be warranted commensurate with reductions in both the probability and consequences of an incident at a decommissioning reactor

Foreign Ownership, Control, or Domination: The proposed rule would specify when the foreign ownership, control, or domination (FOCD) prohibition found in 10 CFR 50.38 does not apply to an entity seeking a license for a facility in decommissioning once a facility is no longer a production or utilization facility. This change would eliminate the FOCD prohibition for reactors in decommissioning. The change would not eliminate the NRC staff’s “inimicality” review, in which it is able to consider the potential effect of any foreign involvement

Other proposed decommissioning-related changes to the NRC’s regulations include revisions related to drug and alcohol testing (fitness-for-duty) programs, certified fuel handler training, environmental evaluation and reporting requirements, record retention requirements, low-level waste (LLW) transportation notification requirements, spent fuel management planning, the NRC’s backfit rule as applied to decommissioning reactors, and the scope of the NRC’s license termination plan (LTP) requirement. As noted in SECY-18-0055, the proposed rule includes changes in three areas that would apply to operating reactor licensees: (1) the process to change a licensee’s security plan; (2) the timing of decommissioning funding assurance reporting requirements; and (3) identification of 10 CFR 26.3 (concerning the scope of the NRC’s FFD program regulations) as a regulation with substantive requirements that could result in criminal penalties, if violated. Finally, the NRC staff noted that it intends to publish four draft guidance documents for public comment in conjunction with the proposed rule.

Given the importance of this rulemaking, we will continue to monitor related developments, including associated public meetings and public comments on the proposed rule and draft guidance documents.